Citation Nr: 0706247
Decision Date: 03/05/07 Archive Date: 03/13/07
DOCKET NO. 04-19 393 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for post-
traumatic stress disorder (PTSD), and, if so, whether service
connection is warranted.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. L. Konya, Counsel
INTRODUCTION
The veteran had active service from December 1974 to February
1976.
This appeal to the Board of Veterans' Appeals (Board) arises
from a May 2003 decision by the RO in New York, New York,
which, in pertinent part, determined that new and material
evidence had not been received to reopen the previously
denied claim of service connection for PTSD.
For the reasons stated below, the Board finds that new and
material evidence has been received to reopen the claim for
service connection for PTSD, but that additional development
is necessary regarding the underlying service connection
claim. Accordingly, the matter of entitlement to service
connection for PTSD, based on de novo review, is REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC. VA will notify the veteran if further action
is required on his part.
FINDINGS OF FACT
1. In an unappealed June 1997 rating decision, the RO denied
service connection for PTSD.
2. Evidence received since the June 1997 decision relates to
an unestablished fact (a diagnosis of PTSD) necessary to
substantiate the claim, and raises a reasonable possibility
of substantiating a claim of service connection for PTSD.
CONCLUSION OF LAW
Evidence received since the June 1997 RO decision is new and
material and a claim of service connection for PTSD may be
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §
3.156 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The United
States Court of Appeals for Veterans Claims (Court) addressed
VA's duty to notify and assist in cases involving claims to
reopen previously denied matters. See Kent v. Nicholson, 20
Vet. App. 1 (2006). The Board finds, however, that there is
no need to discuss the impact of the VCAA on the matter
resolved in the veteran's favor in the decision below.
New and Material Evidence
The veteran asserts that he has PTSD due to stressful events
during service.
In June 1997, the RO denied the claim for service connection
for PTSD, finding, essentially, that that there was no
evidence of an inservice stressor and that the evidence
received did not show confirmed diagnosis of PTSD that was
associated with events from military service. It was
specifically noted that the veteran's service medical records
(SMRs) and personnel records indicated that he had no foreign
or sea duty, that he was never in Vietnam, and that he was
not exposed to combat. The veteran was notified of the June
1997 decision and of his appellate rights, and he replied
with a July 1997 notice of disagreement. Although the RO
issued a statement of the case in October 1997, the veteran
did not reply with a timely VA Form 9. The unappealed June
1997 RO decision is final. 38 U.S.C.A. § 7105.
Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim." See 38 U.S.C.A. §
7105(c) and Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
38 C.F.R. § 3.156(a), which defines "new and material
evidence," was revised, effective August 29, 2001. The
instant claim to reopen was filed after that date, and the
revised definition applies. Under the revised definition,
"new evidence" means evidence not previously submitted to
agency decision makers, and "material evidence" means
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. The new and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).
As noted above, in June 1997, the RO denied service
connection for PTSD on the basis that the evidence of record
did not prove the occurrence of the reported inservice
stressors and did not include a confirmed diagnosis of PTSD.
As such, the evidence that is required in order to warrant
the reopening of the veteran's claim for PTSD, would consist
of evidence of a confirmed diagnosis of PTSD and/or a
verified in-service stressful experience that could be linked
to a diagnosis of PTSD. As explained above, evidence of this
type was not associated with the veteran's claims file at the
time of the June 1997 denial.
The additional items of evidence received since the June 1997
decision includes the veteran's outpatient and
hospitalization records dated from 1997 to 2004. It also
includes the report of a February 2003 VA examination,
letters from J.P. Buckiewicz, a VA staff psychiatrist, dated
in August 2003 and May 2004, and personal statements from the
veteran.
Upon review of the new evidence received since 1997, there is
at least some evidence that is material to the claim of
service connection for PTSD. Specifically noted in this
regard are the letters from J.P. Buckiewicz, in which this VA
staff psychiatrist explained that the veteran witnessed a
serious accident while in the United States Marine Corps.
The psychiatrist noted that the veteran currently suffered
from various psychiatric symptoms, such as severe sleep
disturbance due to nightmares related to the accident he
witnessed in service. He opined that the veteran
demonstrated a symptom cluster which was consistent with the
diagnosis of PTSD. This report is supportive of the
veteran's claim on the issue of current diagnosis and medical
nexus -- hence, this evidence presents a reasonable
possibility of substantiating the veteran's claim.
The above findings that address current diagnosis and medical
nexus with respect to the matter of PTSD, provide a
sufficient basis for the grant of the veteran's petition to
reopen. In short, the letters of August 2003 and May 2004
indicate a diagnosis of PTSD, which the psychiatrist
attributed to events (i.e. witnessing a serious accident)
during the veteran's military service. Thus, there is now of
record a medical diagnosis of PTSD, and of a nexus opinion.
These are facts which had not been established at the time of
the prior June 1997 decision.
As the previous denial of service connection was premised, in
part, on a finding that there was no diagnosis of PTSD, for
evidence to be new and material in this matter, (i.e.,
relating to an unestablished fact necessary to substantiate
the claim, and raising a reasonable possibility of
substantiating the claim), it would have to include a
diagnosis of PTSD. Since the June 1997 RO decision,
additional evidence has been received that is both new and
material. The letters discussed above show diagnoses of
PTSD. This new evidence is thus material, since it goes
towards a diagnosis of PTSD (an unestablished fact necessary
to substantiate the claim), and it raises a reasonable
possibility of doing so. While the newly received medical
records do not provide a definitive nexus with service (as
the reported inservice stressors have not been verified),
they clearly raise the possibility that the veteran has PTSD
related to service.
As new and material evidence has been received, the claim of
entitlement to service connection for PTSD may be reopened.
Adjudication of the veteran's claim does not end with the
determination that new and material evidence has been
received. For the reasons detailed in the remand section,
additional development is required for a full and fair
adjudication of the underlying service connection claim.
ORDER
New and material evidence having been received, the claim of
entitlement to service connection for PTSD is reopened. To
this extent only the benefit sought on appeal is allowed.
REMAND
Service connection is granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303(a). Service connection for PTSD requires medical
evidence establishing a diagnosis of the condition in
accordance with 38 C.F.R. § 4.125(a), credible supporting
evidence that the claimed in-service stressors actually
occurred, and a link, established by medical evidence,
between the current symptomatology and the claimed in-
service stressors. 38 C.F.R. § 3.304(f). The evidence
necessary to establish the occurrence of a recognizable
stressor during service -- to support a diagnosis of PTSD --
will vary depending upon whether the veteran engaged in
"combat with the enemy," as established by recognized
military combat citations or other official records. See
Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines
the veteran engaged in combat with the enemy and his alleged
stressor is combat-related, then his lay testimony or
statement is accepted as conclusive evidence of the
stressor's occurrence and no further development or
corroborative evidence is required -- provided that such
testimony is found to be "satisfactory," i.e., credible, and
"consistent with the circumstances, conditions, or hardships
of service." See 38 U.S.C.A. § 1154(b) (West 2002); 38
C.F.R. § 3.304(d). If, however, VA determines either that
the veteran did not engage in combat with the enemy or that
he did engage in combat, but that the alleged stressor is not
combat related, then his lay testimony, in and of itself, is
not sufficient to establish the occurrence of the alleged
stressor. Instead, the record must contain credible
supporting information from another source that corroborates
his testimony or statements. See Cohen, 10 Vet. App. at 146-
47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95
(1996).
In the present case, the veteran reported that the stressful
events in service that precipitated the onset PTSD included
witnessed a fellow soldier fall onto a grenade and die and
witnessing a suicide attempt. Both incidents reportedly
occurred while he was in basic training at Parris Island,
South Carolina.
In August 2003, a VA psychiatrist diagnosed the veteran as
having PTSD as the result of his experiences in the military.
Similar findings were reiterated in a May 2004 report. These
statements are evidence of a current diagnosis of PTSD, and
they indicate that the condition may be related to service.
As such, the veteran has a VA diagnosis of PTSD related to
reported inservice stressors. What is unclear is whether the
veteran suffered a traumatic event in service as reported.
The next question that must be addressed is whether the
reported stressor events can be verified. As shown above,
the veteran's diagnosis of PTSD was primarily, and perhaps
exclusively, based on his account of witnessing a serious
accident. Unfortunately, the veteran has not been fully
cooperative in providing adequate details concerning his
claimed stressors. Additionally, VA has not attempted to
obtain credible supporting evidence for any of the veteran's
alleged stressors, and has not informed him of any additional
information needed to make this determination.
The RO should contact the veteran and ask that he submit a
detailed statement identifying with all possible specifics
(date, location, unit, individuals involved, etc.), the
stressful events he experienced during service. Then the RO
should use this information, and any pertinent records or
information in the claims file, to submit a verification
request letter to the U. S. Army and Joint Services Records
Research Center (JSRRC) so that an attempt can be made to
verify whether or not the veteran experienced the claimed
events. The RO should emphasize to the veteran that he must
provide specific information regarding his unit(s) and
approximate dates of any suicide attempt or death he
witnessed. The information should be forwarded to JSRRC to
determine whether the veteran's reported stressors can be
verified.
The Board understands that providing the specific information
necessary to verify his claimed stressors may be distressing,
but advises the veteran and his representative that he has a
duty to provide information sufficient to conduct a search of
the corroborative records. See 38 C.F.R. § 3.159(c)(2)(i)
(2006). The Board also reminds the veteran, and his
representative, that the duty to assist is not a one-way
street, and an appellant must do more than passively wait for
assistance when he has information essential to his claim.
Wood v. Derwinski, 1 Vet. App. 190 (1990).
The veteran has a VA diagnosis of PTSD based on his reported
(but presently unverified) stressors. If a stressor event is
verified, the veteran should be sent for a VA psychiatric
examination to determine whether it is at least as likely as
not that he has a PTSD due to a verified stressor event.
Prior to any examination, all pertinent outstanding records
should be obtained. Specifically noted in this regard are
records of ongoing VA or private treatment for psychiatric
problems since September 2004 (the date of the latest records
on file) and any reports of psychiatric testing performed on
the veteran. Copies of any pertinent outstanding records of
such treatment or examination should be added to the claims
file.
As noted above, the VCAA describes VA's duty to notify and
assist claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2006). The Board notes that pertinent caselaw has
provided additional guidance as to the exact nature and
extent of these duties. See Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006). The RO should take this opportunity to
ensure such compliance, especially in light of recent
pertinent caselaw.
For the reasons stated above, this matter is REMANDED for the
following:
1. The RO should ensure that the
appellant is issued a VCAA letter
appropriate for his claim of entitlement
to service connection for PTSD, which
provides the notices required under the
relevant portions of the VCAA, its
implementing regulations, and pertinent
caselaw. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2006); See
also Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
2. The RO should attempt to obtain any
pertinent records of medical treatment or
examination outstanding. Specifically
noted in this regard are records of
psychiatric treatment since September
2004 and any outstanding reports of
psychiatric examinations performed on the
veteran.
3. The RO should ask the veteran to
provide specific information regarding
the stressor event(s) he alleges occurred
during service, and particularly those he
reported as having occurred while he
served at Paris Island, South Carolina.
He should be advised that this
information is critical to his claim.
4. The information the veteran provides
in response to the request above should
be forwarded to the U. S. Army and Joint
Services Records Research Center (JSRRC)
at 7701 Telegraph Road, Kingman Building,
Room 2C08, Alexandria, VA 22315-3802, for
verification of the stressors claimed by
the veteran, specifically whether the
veteran witnesses a suicide attempt
and/or a fellow soldier die falling on a
grenade. Morning reports and Quarterly
Reports for the veteran's unit should be
reviewed, and the JSRRC should provide to
VA copies of the pertinent portions of
any such records as they relate to the
veteran's reported inservice stressor
events.
5. If, and only if, an inservice
stressor event is verified by the JSRRC
report, then the veteran should then be
scheduled for a VA psychiatric
examination to determine whether it is at
least as likely as not that he has PTSD
(under DSM-IV criteria) related to the
verified event(s) in service. The
veteran's claims folder must be reviewed
by the examiner in conjunction with the
examination. The examiner should provide
a complete rationale for any opinion
given and should reconcile the opinion
with any competing medical evidence of
record.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely"
(meaning that there is a less than 50%
likelihood).
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of that conclusion as it is
to find against it.
6. After completion of the above and any
additional development of the evidence
that the RO may deem necessary, the RO
should review the record and readjudicate
the issue on appeal on a de novo basis.
If any benefit sought remains denied, the
veteran and his representative should be
issued an appropriate supplemental
statement of the case and afforded the
opportunity to respond. The case should
then be returned to the Board for further
appellate review, if otherwise in order.
The purpose of this remand is to comply with governing
adjudicative procedures. The Board intimates no opinion,
either legal or factual, as to the ultimate disposition of
the remanded issue. The appellant has the right to submit
additional evidence and argument on the matter the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the
appellant that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examination, is both
critical and appreciated. The appellant is also advised that
failure to report for any scheduled examination may result in
the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
DENNIS F. CHIAPPETTA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs